The ICC Jurisdictional Regime; Addressing U.S. Arguments


Since the diplomatic conference in Rome, U.S. representatives have made much of the claim that the International Criminal Court (ICC) is overreaching, asserting that it is based on "universal jurisdiction" and binds non state parties through the potential exercise of jurisdiction over their nationals. This has been used to support the position that some form of veto over the ICC's docket should be given to the state of nationality of the accused. These claims embody a misrepresentation both of the jurisdictional provisions of the ICC treaty and of existing state practice --including that of the United States-- under general international law and international treaties. In fact, far from the overreaching alleged, Article 12 of the ICC treaty establishes a very conservative regime, far more limited than universal jurisdiction and more restrictive than the regimes embodied in other international treaties.


Before the ICC can act, the state of territory or nationality of the accused must be a party to the ICC treaty or accept the Court's jurisdiction (Article 12). A proposal advanced by South Korea, which enjoyed overwhelming support at the Diplomatic Conference, would have allowed the ICC to prosecute if any one of four states had ratified the ICC treaty or accepted the Court's jurisdiction. These were the state on whose territory the crimes were committed, the state of nationality of the accused, the state of nationality of the victim or the state with custody of the accused. While the reduction in the scope of the Court's jurisdiction to its present form is regrettable, and will limit the circumstances in which the Court can exercise its jurisdiction, it is not fatal to its ability to function. It remains clearly preferable to the yet more restrictive state of nationality veto which would, in practice, reduce the ICC to an extremely limited system of ad hoc justice, based on political expediency.

Under the Article 12 regime, the Court would most likely have jurisdiction in cases with an "international" element, where the state of nationality and territory are distinct states. With widespread ratification or Security Council referral it will also be able to prosecute genocide, crimes against humanity or war crimes committed within a single state, when the territorial state and state of nationality of the accused are one and the same. The extent of support for the treaty in Rome, and the diverse range of states that have already signed the treaty, provide a positive starting point to move toward global ratification. Many states will, we believe, see the positive deterrent value of ratification of the ICC treaty. Particularly those states that have made a recent transition to democratic governments are likely to embrace the ICC as insurance against future atrocities.(1) Even in states that do not ratify, new governments may well accept the ICC's jurisdiction over crimes committed prior to transition. Furthermore, the Security Council will refer situations to the Court, albeit selectively, thus overriding the prerequisites to the exercise of jurisdiction(2). We believe that situations will exist in the future, as they have in the past, in which the interests of international justice and the interests of the Council, including all five permanent members, will coincide and the jurisdiction of the ICC be invoked.

The U.S. had insisted that the ICC's authority be yet more restrictive, depending solely on the acceptance of the Court's jurisdiction by the state of nationality of the accused. Assertions were made following the conference that any other approach violates international law. Yet requiring the consent of the state of nationality would be out of line with jurisdictional theory and state practice. The first and best established jurisdictional principle is 'territoriality'(3): when crimes are committed on the territory of a state, that state is entitled to exercise criminal jurisdiction, whatever the nationality of the accused. Insisting on the state of nationality as the essential nexus for prosecution contradicts even this most basic principle. It would be ludicrous to argue that the state of territory should require the consent of the state of nationality before prosecuting.

Moreover, the majority of the core crimes in the ICC treaty are crimes which, under general international law, any nation in the world has the authority to prosecute as crimes of universal jurisdiction.(4) This principle has been applied as a basis for jurisdiction in a number of domestic cases(5) ,including in the U.S..(6) Again, this jurisdiction could be exercised without requiring consent of the state of nationality of the accused, or any other state. The Article 12 requirement that the state of territory or nationality must have ratified the treaty or accepted its authority imposes preconditions on the exercise of ICC jurisdiction that would not be imposed on the exercise of universal jurisdiction by any state. Assertions that the ICC is empowered exercise some form of universal jurisdiction are therefore spurious.


The claim that the statute is "overreaching" because it supposedly binds states that have not ratified the treaty through the exercise of jurisdiction over their nationals is a gross distortion.

The ICC treaty does not "bind" non-States Parties or impose upon them any obligations toward the Court. Part 9 of the ICC statute, dealing with state cooperation with the Court, specifically obliges only "state parties" to cooperate fully and without undue delay; a clear distinction is drawn in a number of provisions between state parties and non state parties. Those who have put forward these concerns would not dispute this. Rather, their concern relates to the prosecution of a non-state parties nationals without its consent, wrongly characterized as "binding" the state in question. As noted above, this possibility already exists as part of general international law and corresponds with established state practice. The following section explains that there is, moreover, nothing unusual about the conferral of jurisdiction over nationals of non-State Parties through the mechanism of treaty law.


Many treaties, such as hijacking or anti-terrorism conventions, provide for states other than the state of nationality of the accused to exercise jurisdiction over persons accused of having committed the serious crimes within their scope.(7) Those treaties provide - reflecting the states mentioned in the ICC treaty - firstly for the state of territory or secondly for the offender's state of nationality to exercise jurisdiction(8). In most cases they go beyond, providing that the state of nationality of the victim(9) should also do so. And all contain provision for all state parties who find an offender on their territory to either prosecute or extradite. These treaties, like the ICC treaty, do not require that the state of nationality be a party to the treaty or consent to prosecution. This is unsurprising. It is hard to conceive of an anti-terrorism treaty, for example, that required ratification or consent by the state of nationality of the accused being acceptable to states, and certainly not to public opinion or to the government in the United States.

The U.S. is party to all but one of the treaties cited in this paper.(10) It has in fact exercised jurisdiction over non-U.S. nationals in a number of cases, on the basis of the treaty provisions empowering it to do so. One example involved a Lebanese citizen suspected of hijacking a Jordanian aircraft in the Middle East. Based on domestic legislation implementing the International Convention Against the Taking of Hostages and the Hague Convention,(11) the US exercised jurisdiction as the state of nationality of two U.S. passengers who were among the victims of the alleged crime. A similar case concerned the murder of a U.S. congressman by a Guyanan citizen in Guyana, with the prosecution based again on the victim's nationality, as provided for in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons.(12) In neither of these cases, nor in another similar case,(13) was it argued or considered by U.S. Courts, that the non-ratification of the relevant treaty by the suspect's state of nationality might somehow render "overreaching" or otherwise questionable the exercise of U.S. jurisdiction.

1. Although a State Party can withdraw from the statute, it can do so only one year after receipt of a written notification (Article 127). Withdrawal does not affect the Court's consideration of a matter being investigated or prosecuted prior to the effective date of withdrawal.

2. The Article 12 prerequisite that one of the state of territory or the accused's nationality have ratified or accept jurisdiction expressly applies only to complaints by a state party or the exercise of the prosecutor's ex officio power under Article 15. No state could prevent the ICC from exercising jurisdiction in the event of a Security Council referral.

3. The Comment to s. 402 of the Restatement of the Law (Third), Foreign Relations of the United States, (American Law Institute, 1987) (hereafter The Restatement), recognizes that "[t]erritoriality is considered the normal, and nationality the exceptional, basis for the exercise of jurisdiction."

4. The Restatement, para.404: "A state may exercise jurisdiction to define and punish certain offense recognized by the community of nations of universal concern, such as piracy, slave trade, attacks on or hijacking o aircraft, genocide, war crimes, and perhaps terrorism, even where none of the bases of jurisdiction indicated in s. 402 is present."

5. See also Attorney General of Israel v. Eichmann, in International Law Review, vol. 36, p.50 (Israel Supreme Court, 1962) where the Israeli Supreme Court found, similarly, that there was "full justification for applying here the principal of universal jurisdiction since the international character of "crimes against humanity"... dealt with in this instant case is no longer in doubt..."

6. In re Demjanjuk, 612 F.Supp. 544 9N.D.Ohio 1985), aff'd, 776 F2d 571 (6th Cir. 1985) the court allowed the extradition to Israel of a German concentration camp guard. The Court invoked universal jurisdiction, noting: "international law does not generally prohibit the application of national laws over non citizens for acts committed outside its territory." The Court noted that "Israel has brought charges...asserting jurisdiction based on a statute that penalizes "war crimes " and "crimes against humanity" among other acts. The international community has determined that these offenses are crimes over which universal jurisdiction exists." The Court also cited the case of United States v. Otto, Case no 000-Mauthausen-5 (DJAWC, July 10 1947), to the effect that "international law provides that certain offenses may be prosecuted by any state because the offenders are common enemies of all mankind and all nations have an equal interest in their apprehension and punishment."

7. See the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Dec 12, 1969 U.N.T.S. 220-241, the Convention for the Suppression of Unlawful Seizure of Aircraft ("The Hague Convention") Sept 21, 1971, 860 U.N.T.S. 105, the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation ("The Montreal Convention"), Sept 23, 1971, 24 UST564, the International Convention Against the Taking of Hostages, G.A.Res.34/146, 34 U.N.GAOR Supp. (No39), UN Doc A/39/819(1979), the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents ("The Protected Persons Convention"), Dec 14, 1973, 1035 U.N.T.S.167, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ("The Convention Against Torture"), Dec 10 1984, 1465 U.N.T.S. 113, the International Convention on the Suppression and Punishment of the Crime of Apartheid ("The Apartheid Convention"), Nov 30, 1973, 1015 U.N.T.S. 243, the Convention on the Physical Protection of Nuclear Material, 1456 U.N.T.S.24631.

8. These treaties affirm not only the competence but also the obligation of the specified States to exercise jurisdiction.

9. The International Convention Against the Taking of Hostages, the Montreal Convention, the Protected Persons Convention, the Convention Against Torture and the Apartheid Convention.

10. The International Convention on the Suppression and Punishment of the Crime of Apartheid.

11. United States v. Fawaz Yunis, 924 F.2d 1086 (D.C. Cir.1991). The court upheld the U.S. court's subject matter jurisdiction, based on the Hague Convention and the International Convention Against the Taking of Hostages referred to above (924 F2d at 7, 12-13), that the victim's state of nationality may exercise jurisdiction. The court held this to be consistent with customary international law (924 F2d at 8).

12. United States v. Layton, 509 F.Supp. 544 (N.D.Cal. 1981), aff'd, 855 F.2d1388 (9th Cir.1988).

13. See also U.S. v. Yousef, 927 F.Supp 673 (S.D.N.Y. 1996), where jurisdiction was based on the Montreal Convention.